Nannie D.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Mar 21, 2019

0120170074 (E.E.O.C. Mar. 21, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Nannie D.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120170074

Hearing No. 551-2012-00095X

Agency No. ARIMWE11MAR01153

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a) concerning her entitlement to attorney’s fees.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Labor Attorney at the
Agency’s Joint Base Lewis-McChord facility in Washington. On May 23, 2011, Complainant
filed an EEO complaint alleging that the Agency discriminated against her on the bases of national
origin (Hispanic), sex (female), and in reprisal for prior protected EEO activity when she was
subjected to a hostile work environment between September 2010 and November 2011.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing,
and the AJ held a hearing on July 30 and 31 and September 12 and 19, 2013.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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The AJ issued a decision on December 17, 2014, finding that the Agency subjected Complainant
to a retaliatory hostile work environment, but that she was not subjected to discrimination on the
bases of national origin or sex. The AJ ordered the Agency to, inter alia, pay Complainant $35,000
in nonpecuniary compensatory damages and reinstate all sick and annual leave used by
Complainant during the period at issue. The AJ issued a separate decision awarding Complainant
$91,308.75 in attorney’s fees and $6,916.27 in costs, which represented a 25 percent reduction
from the requested amounts.

Thereafter, the Agency issued a final order fully implementing the AJ’s decision and the relief
ordered. Complainant appealed and, in Nannie D. v. Dep’t of the Army, EEOC Appeal No.
0720150021 (Apr. 28, 2016), the Commission affirmed the AJ’s findings and award of
compensatory damages but modified the AJ’s decision regarding attorney’s fees. Specifically, the
Commission rejected the AJ’s reduction in attorney’s fees finding that the bases on which
Complainant did not prevail were not distinct from the basis of retaliation on which she was
successful. Accordingly, the Commission found that no reduction in the fee award was warranted
based on the unsuccessful bases. Accordingly, we found that Complainant’s attorney was entitled
to fees of $121,745.00 and costs of $8,367.53. The Commission remanded the matter to the
Agency for further processing in accordance with the order

On September 18, 2016, the Commission received an appeal from Complainant. In the appeal,
Complainant explains that she submitted a supplemental attorney’s fees petition to the Agency for
fees incurred in her successful appeal. In that petition, Complainant sought $5,455 in attorney’s
fees and $52.93 in costs. However, the Agency never issued a decision regarding her supplemental
fees petition. After the time for compliance expired, Complainant filed this appeal.

Complainant submitted the fee petition to the Agency attorney who represented the Agency at the
hearing. In emails submitted on appeal, the Agency attorney explained that Complainant needed
to submit the fee petition to the Agency’s EEO Compliance & Complaints Review Division
(EEOCCR.) Complainant submitted the fee petition to EEOCCR but never received a response.
Complainant avers that she incurred an additional $540 in attorney’s fees to submit the petition to
EEOCCR. In subsequent emails, she followed up with the Agency Attorney who responded that
she has been inquiring with EEOCCR but also had not received a response.

After Complainant submitted the appeal, Complainant filed a statement on appeal noting that the
Agency did not submit a response. Additionally, Complainant informs the Commission that she
has spent an additional $1,291 in fees and $20 in costs to file this appeal. Complainant also
explains that the AJ and the Commission previously approved attorney’s fees at a rate of $500 per
hour in EEOC Appeal No. 0720150021, and therefore, that hourly rate should continue to apply
to the work Complainant’s attorneys performed in furtherance of her complaint.

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ANALYSIS AND FINDINGS

Title VII and the Commission’s regulations authorize the award of reasonable attorney's fees and
costs to a prevailing complainant. 29 C.F.R. § 1614.501(e); see also EEO Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 11-1 (Aug. 5, 2015). Fee awards are typically
calculated by multiplying the number of hours reasonably expended times a reasonable hourly
rate, an amount also known as a lodestar. See 29 C.F.R. § 1614.501(e)(ii)(B); Blum v. Stenson,
465 U.S. 886, 899 (1984); Hensley v. Eckerhart, 461 U.S. 424, 435 (1983).

Here, the record indicates that the Agency never issued a final decision with respect to
Complainant’s request for attorney’s fees following a successful appeal. EEOC Regulations
provide that an agency shall issue a decision regarding attorney’s fees within 60 days of receipt of
the fees petition. 29 C.F.R. § 1614.501(e)(2)(i). The Agency has not provided a valid reason for
the complete failure to issue a final decision addressing Complainant’s right to attorney’s fees.
Indeed, the Agency has provided no reason whatsoever, and appears to have ignored
Complainant’s fee petition and this appeal. Therefore, the Commission finds that the Agency did
not comply with its obligation to issue a final decision in accordance with the time frames set forth
at 29 C.F.R. § 1614.501(e)(2)(i). As noted by the Commission in Mach v. Dep’t of Def., EEOC
Appeal No. 0120080658 (Nov. 30, 2010), “the procedures contained in the Commission’s
regulations are no more or no less than the necessary means to eliminate unlawful employment
discrimination in Federal employment.”

The Commission, in its discretion, may award the full amount of a request for attorney’s fees where
a federal agency is untimely in issuing a final decision on a fee request made pursuant to the
provisions of its regulations. See Dorathy M. v. Dep’t of Transp., EEOC Appeal No. 0120143074
(Feb. 23, 2016); Carroll v. U.S. Postal Serv., EEOC Appeal No. 01994040 (May 29, 2002); Morra-
Morrison v. U.S. Postal Serv., EEOC Appeal No. 01972745 (June 18, 1998). Here, the record is
clear that the Agency failed to issue a final decision on attorney's fees and costs related to
Complainant’s successful appeal. However, in awarding the full amount of a request for attorney's
fees under such circumstances, the Commission independently reviews the fee petition for
reasonableness. See, e.g., Dorathy M., supra, EEOC Appeal No. 0120143074.

The Commission concludes that the record demonstrates that the full amount of Complainant’s
request for attorney’s fees is warranted in this case. Complainant appropriately submitted an
attorney’s fees petition and the Agency failed to consider the request and issue a final decision
addressing the request for attorney’s fees and costs. We have independently reviewed the petition,
including those fees incurred for the filing of this appeal, and find that the fees Complainant
requests appear to be reasonable both in hourly rate and hours expended. Therefore, the Agency
will be ordered to promptly pay the full amount of the attorney’s fees requested in that petition.

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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we grant Complainant’s request for attorney’s fees and costs and
REMAND the matter to the Agency for further processing in accordance with the ORDER below.

ORDER

Within 60 calendar days of the date this decision issued, to the extent it has not already done so,
the Agency shall pay Complainant attorney’s fees in the amount of $7,286.00 and costs in the
amount of $72.93.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has
the right to file a civil action to enforce compliance with the Commission’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on
the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp.
IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint.
However, if you wish to file a civil action, you have the right to file such action in an appropriate
United States District Court within ninety (90) calendar days from the date that you receive this
decision. In the alternative, you may file a civil action after one hundred and eighty (180)
calendar days of the date you filed your complaint with the Agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in the complaint the person
who is the official Agency head or department head, identifying that person by his or her full name
and official title.
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Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means
the national organization, and not the local office, facility or department in which you work. Filing
a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

March 21, 2019
Date